On the heels of three memoranda from its General Counsel, multiple ALJ decisions, and even one or two decisions of the full Board addressing employer social media and communications policies over the last couple of years, the National Labor Relations Board (NLRB)’s decision last week in DirecTV, which held that DirectTV’s policies restricting certain employee communication were unlawfully overbroad, might be viewed by some as rather predictable. Nevertheless, despite the uncertain validity of recent Board decisions in general in light of the D.C. Circuit’s Noel Canning decision (see our blog post from yesterday for more discussion of the Noel Canning decision), DirecTV is instructive precisely because of its apparent routine nature. In short, as Board decisions related to social media and employee communications become more predictable and routine, the more the employer community has some reasonable assurance that it can craft policies that can withstand NLRB scrutiny.

Communication with the Media:

DirecTV had two policies relating to communications with media that were challenged in this case. The first, a handbook policy, said, simply, “Do not contact the media.” The NLRB said that this policy violated employee rights under Section 7 of the National Labor Relations Act (NLRA) because it covered employee comments to reporters about labor disputes. The Board did offer some guidance about what might be required of a permissible policy, finding that the rule should have differentiated between protected (by Section 7) statements and non-protected statements, like those that are maliciously false.

The second media communication policy, a “Public Relations” policy on the company intranet, said, in part, “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” The Board struck down this policy as well, holding that it would prevent workers from expressing disagreement with DirecTV to the media about labor disputes, including those about wages, hours, or terms and conditions of employment. These rights are protected by Section 7 of the NLRA. The Board noted that the rule made no attempt to limit its application to statements about proprietary information, which presumably would have been permissible.Continue Reading NLRB Further Restricts Employer Policies on Employee Communication: NLRB Finds Rules Restricting Employee Communication with Media and Law Enforcement and Communication about Confidential Information Unlawful